Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona STEPHEN W . LARAMORE JOHN R. LOPEZ, IV Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona States Bar No. 017218 Arizona State Bar No. 019182 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-1098-PHX-EHC Plaintiff, v. Jeanette B. Wilcher, Defendant. The United States, through undersigned counsel, hereby responds to Defendant's Motion in Limine Re: Certain Evidence and Exhibits. Respectfully submitted this 3rd day of April, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /S/ Stephen W. Laramore STEPHEN W. LARAMORE Assistant U.S. Attorney /S/ John R. Lopez IV JOHN R. LOPEZ, IV Assistant U.S. Attorney GOVERNMENT'S RESPONSE TO MOTION IN LIMINE RE: CERTAIN EVIDENCE & EXHIBITS

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1 MEMORANDUM OF POINTS AND AUTHORITIES 2 Defendant renews her motion in limine for an order precluding the government from 3 introducing any evidence or testimony at trial concerning past or present civil litigation or 4 administrative actions involving her, including civil law suits, administrative proceedings, 5 bankruptcy proceedings, and other alleged bad acts or crimes. 6 The Court previously denied Defendant's previous motion in limine on the grounds that 7 it was moot. The Court's ruling was based upon the government's agreement that it would not 8 attempt to introduce in its case-in-chief evidence that Defendant had been sued, been the subject 9 of an SEC investigation or adverse ruling or involved in bankruptcy proceedings. 10 government understood that Defendant's motion in limine was intended to preclude the 11 government from introducing bad acts evidence solely for the purpose of prejudicing Defendant. 12 On this basis, the government agreed that it did not intend to solicit evidence in its case-in-chief 13 designed to demonstrate Defendant's guilt through her prior bad acts. 14 Defendant now seeks to expand the scope of her motion in limine to preclude any 15 evidence, even non-prejudicial evidence, concerning any reference to an administrative 16 proceeding concerning, among other issues, Hitsgalore stock. As the government has previously 17 explained, it objects to Defendant's motion in limine to the extent that it seeks to preclude 18 relevant, non-prejudicial evidence concerning her statements to other witnesses, which were part 19 of her scheme to lull the victim or the victim's advocates in their attempts to recover the victim's 20 investment. As agreed, the government has not sought to introduce evidence that Defendant was 21 subject to numerous civil and administrative proceedings. The government does not intend to 22 call witnesses to testify concerning civil litigation or Defendant's other legal difficulties. 23 However, the government submits that Defendant's motion in limine should not preclude 24 admission of evidence of statements made by Defendant to perpetuate her scheme to defraud and 25 lull the victim from recovering her investment. 26 In addition, Defendant objects to a number of the government's proposed trial exhibits 27 28 2 The

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and have moved in limine to preclude them. objections as follows: 1) Exh 36 - Acct at Lewco/Schroeder

The government responds to Defendant's

(a). Pages 1910 - 1913 will not be removed. 1910 and 1912 is an unaudited Financial Statement of Life Foundation Trust ("LFT") provided the bank with respect to the LFT account. 1911 is the signature card for the LFT account. 1913 is a Corporate Resolution vesting defendant with the power to act on behalf of the company. All other pages specified in defendant's motion will be removed. (b.) The government will remove the pages listed but not for the reason stated. There are other references to the receipt and sale of Hitsgalore stock reflected in these bank records. The government intends to introduce the bank records which also mention Hitsgalore in order to prove how the $3.3 million invested by Gillepsie was expended by the defendant and to also demonstrate that one of several payment to Sansea and the victim in June 1999 in the amount of $600,000 stemmed from the sale of this stock as a step in the continuation of the scheme to defraud. It is the government's position that the receipt and sale of Hitsgalore stock is therefore inextricably intertwined with the fraud upon Gillepsie in that it is the source of yet one more Ponzi payment made to quiet the demands of the investor and others. See United States v. Sayakhom, 186 F. 3d 928, 937-38 (9 th Cir. 1999) (finding two mail fraud schemes inextricably intertwined where second scheme was the continuation of the first, after the first scheme failed.), amended by 197 F. 3d 959 (9 th Cir. 1999). (c). The government will remove these pages. 2). Exhibit 37- Wilcher's Financial Service Account at Bank One. The government will remove all pages listed in defendant's motion except for page 01 which is defendant's signature card.

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3). Exhibit 38 - LFT account at Bank One. The government will remove all the documents enumerated by defendant except for 147signature card, 316 - check supporting a bank statement for August and 322 which encompasses the last month of the scheme. 4.) Exhibit 39. The government will remove the pages requested. 5.) Exhibit 41 - Checking and banking account of Wilcher's daughter. The government objects to the removal of any pages. On March 9, 1999, defendant caused her daughter to negotiate a cashier's check with through this account with a check from J.B. Wilcher's Well Fargo Account # 0901-738104 , check no. 835. The cashier's check was made payable to First American Title for the purchase of defendant's house­ 10758 E. Laurel Lane and represents one of three payments for the repurchase of defendant's house through the title company. The withdraw of money from the Wells Fargo account and the purchase of a cashier's check to acquire Laurel Lane is reflected in Count 5, a violation of Title 18 USC Sec. 1957. The government is required to show the money is criminally derived from the criminal offense. Unlike a violation of Title 18 USC 1956, the criminally derived proceeds must be shown to be separate and apart from any other funds. In this case, the records of the daughter are needed to demonstrate that the only money coming into her account and then used to purchase a cashier's check for Laurel Lane was from the defendant and stemmed from her fraud upon Connie Gillepsie. See United States v. Rutgard, 116 F. 3d 1270, 1291 (9 th Cir 1997) (The United States may prove that the funds withdrawn or transferred from various bank accounts derived in any of three ways. First, the United States may prove that all the money in the various bank accounts came from illicit activities and that those activities were entirely fraudulent. Second, the United States may prove that all the money in the respective accounts, at the time the particular withdraw or transfer was made, was criminally derived. Third, the United States may prove the amount of a particular withdraw or transfer exceeded the total of all noncriminally derived funds in the account just prior to the withdraw or transfer.) 4

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6). Exhibit 42: First American Title records. The government has no objection to the deletion of 12663 but objects to the removal of any other documents. The records reflect that defendant Wilcher lost her home at Laurel Lane to foreclosure in 1998 and repurchased it in 1999 with money stolen from Connie Gillepsie. This evidence is critical because it shows that Wilcher's representations of wealth were unfounded and that one of the motives for defrauding Gillepsie was to acquire money to purchase her house from foreclosure, the subject of Counts 5, 6 and 7 for approximately $700,000. See United States v. Booth, 309 F. 3d 566, 575 (9 th Cir. 2002) ( The misuse of funds for personal reasons or purposes other than represented is evidence of fraudulent intent.) 7.) Exhibit 43 The government intends to cross examine defendant with respect to the items set forth in defendant's motion if she should elect to testify. Sec. 608(b) of the Fed. Rules of Evid.

Respectfully submitted this 3rd day of April, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /S/ Stephen W. Laramore STEPHEN W. LARAMORE Assistant U.S. Attorney /S/ John R. Lopez IV

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CERTIFICATE OF SERVICE I hereby certify that on April 3, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Deborah Euler-Ajayi Asst. Federal Public Defender 850 W. Adams Street, Suite 201 Phoenix, Arizona 85007 Attorney for Defendant / S/ JOHN R. LOPEZ IV

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